Many of those displaced by the conflict in Yemen have sought refuge at the Mazraq camp in northwest Yemen. Photo Credit: Hugh Macleod / IRIN

On March 26, 2015, a coalition of Gulf States led by Saudi Arabia launched a military intervention into Yemen’s ongoing civil war. The coalition justified its entry into the conflict principally by reference to its “responsibility” to protect the people and the legitimate government of Yemen.1 The language of responsibility was likely chosen in order to refer to the norm of “responsibility to protect” (RtoP). Yet throughout the intervention, directed against the Houthis and forces loyal to the ousted President Ali Abdullah Saleh, the Saudi-led coalition has failed to protect civilians. Over a third of the coalition’s airstrikes have struck civilian sites.2 In fact, there is a growing body of evidence that, in many of these instances, the coalition deliberately targeted civilians and civilian infrastructure, including “farms, animals, water infrastructure, food stores, agricultural banks, markets, and food trucks.”3 The coalition supplemented these airstrikes with an indiscriminate application of the Security Council-authorized arms embargo, effectively blocking the import of food, medicine, and fuel. Slowly, food and medicine are being permitted into Yemen through a UN-backed verification program. While the bombing of civilian sites has slowed, it has not stopped entirely. A funeral procession in Sanaa was bombed in October 2016, killing over 140 and injuring 500.4

The way that the Saudi-led intervention has been conducted suggests that RtoP was invoked cynically to justify a military intervention with other intentions.5 Yet the coalition’s ability to invoke RtoP points to a larger problem with RtoP beyond the situation in Yemen: the way the United Nations has implemented RtoP does not preclude either cynical invocations or the further problem that interventions frequently do more harm than good. Consequently, the situation in Yemen is useful for demonstrating the utility of the Brazilian proposal of “responsibility while protecting,” the implementation of which could have foreclosed the intervention entirely or at least have mitigated the most serious consequences borne by the Yemeni civilian population.

In the wake of the controversial 2011 NATO-led intervention in Libya, Brazil proposed the concept of “responsibility while protecting” (RwP) as a way to restore confidence in RtoP-justified humanitarian intervention.6 RwP does not challenge the fundamental idea underlying RtoP—that Westphalian sovereignty should not impede the international community’s ability to stop war crimes, crimes against humanity, genocide, or ethnic cleansing (collectively, mass atrocities)—but it complements this idea with the acknowledgement that “even warranted on the grounds of justice, legality, and legitimacy, military action results in high human and material costs.”7 RwP shifts the emphasis away from collective international action (pillar three of RtoP) onto prevention through emphasizing individual state responsibility and international capacity-building (pillars one and two). It does so through its requirement that the pillars be fulfilled in “strict” sequencing so that the requirement of “force as the last resort” has a procedural meaning and is not simply a rhetorical device.

Brazil’s proposal acknowledges that there will remain “exceptional circumstances” in which prevention and diplomatic efforts fail. (Brazil has also dropped the “strict” sequencing requirement in favor of “prudential” sequencing to give more flexibility for intervention.) Thus, RwP permits the use of force to protect against mass atrocities subject to two further constraints, assessment and accountability. Assessment requires that intervention “be preceded by a comprehensive and judicious analysis of the possible consequences of military action on a case-by-case basis.”8 The standard against which the analysis is conducted, the principle of proportionality, is familiar from the just war tradition. The use of force “must produce as little violence and instability as possible” and cannot cause more harm than it prevents.9 Importantly, RwP mandates that this assessment be carried out before the use of force can be authorized by the Security Council (or the General Assembly in exceptional circumstances)—an authorization that RwP, like RtoP, stipulates as necessary.

In addition to assessment, military intervention is subject to the requirement of accountability. Accountability requires that the use of force be exercised “in strict conformity with international law, in particular international humanitarian law and the international law of armed conflict.”10 This requirement, in itself, is not at odds with RtoP. The 2005 World Summit Outcome Document calls for RtoP to be carried out “through appropriate and necessary means,” which no doubt implies adherence to international humanitarian law and the laws of war.11 What further distinguishes RwP is the emphasis that “enhanced Security Council procedures are needed to monitor and assess the manner in which resolutions are interpreted and implemented to ensure responsibility while protecting.”12 That is, RwP requires the monitoring of those forces with a UN mandate to intervene. In addition to compliance with international law, the intervening forces must be monitored to ensure that the intervention is in compliance with the “letter and spirit of the mandate” and limited to the explicit objectives therein.13 The latter entails that the UNSC must authorize specific objectives the intervening forces are to pursue, objectives that are more specific than simply the broad goal of protecting civilians. While this requirement admittedly suffers from ambiguity—for example, is Brazil calling for a new observational body or simply new procedures that must be implemented by the Security Council?—it does highlight the fact that there needs to be real accountability to ensure the legitimacy of force yielded in the name of the international community.

Buildings were reduced to rubble by airstrikes in Sanaa, Yemen. Taken October 9, 2015. Photo Credit: Almigdad Mojalli/VOA.

Would having RwP as an established norm have affected the coalition’s decision to intervene in Yemen or altered the way the intervention was conducted? I believe the answer is yes to both questions because of the requirements of assessment and accountability, and because of some of the ambiguities surrounding RtoP that RwP clarifies.14 First, the requirement that intervening forces adhere to those objectives in the authorizing mandate would have meant that the coalition could not have taken advantage of ambiguities surrounding RtoP to justify their intervention. In Resolution 2014 (2011) the UNSC used the language of responsibility to refer to the situation in Yemen (a resolution which continues to be cited in all subsequent resolutions concerning Yemen). Because under RtoP the intervening forces are not strictly limited to pursuing objectives authorized by the mandate, the Saudi-led coalition could reasonably justify their intervention by appeal to Resolution 2014. The absence of the clear objective requirement means that the coalition could act to protect civilians in ways not explicitly authorized by the UNSC and have their actions tacitly endorsed. (Despite the many UNSC resolutions condemning Houthi violence against civilians, none have condemned the coalition’s indiscriminate attacks on civilians.) Thus, the situation in Yemen was one in which the Saudi-led coalition could take advantage of an ambiguity surrounding RtoP and claim to discharge its responsibility to the Yemeni people. Yet it is clear that the objectives pursued by the coalition reach beyond simply protecting civilians and instead seem to be tied to prosecuting an illegal proxy war with Iran.15 Admittedly, without the legitimizing language of the RtoP framework the Saudi-led coalition may still have chosen to intervene in Yemen. However, in doing so their actions would have been questionable under international law, and the UNSC would have been obliged to address the situation under its Chapter VII powers.16

More fundamentally, under RtoP there was no need for a pre-intervention assessment to be conducted regarding the consequences of an intervention. Had there been an assessment, it would have been obvious that the already dire humanitarian situation in Yemen would have been ill-served by an intervention of this nature. Prior to the intervention by the Saudi-led coalition, Yemen was already suffering from one of the highest rates of malnutrition in the world, and its population was dependent upon imports to meet 90% of its food and medical needs. Given that military intervention can be expected to cause internal displacement among the population, as well as have likely effects on the transportation of aid, any expected benefits of the intervention would have been outweighed by the likely costs borne by the civilian population.

Assuming, nonetheless, that the assessment would have yielded UN authorization to intervene, the additional requirement of accountability would have mitigated some of the worst effects of the intervention. The United Nations High Commissioner for Human Rights reported that, for the period dating July 1, 2015, to June 30, 2016, civilian deaths and injuries in the conflict totaled 2,067 and 2,815, respectively. Of these, 1,259 deaths and 1,360 injuries have been attributed to coalition airstrikes.17 Many of the deaths have come through airstrikes on non-military targets, including numerous hospitals, schools, factories, power stations, and busy marketplaces in violation of the laws of war. One airstrike was even carried out against the Mazraq refugee camp, killing twenty-nine, of which fourteen were children.18 Since the conflict began there has been no accountability for coalition forces’ alleged war crimes or crimes against humanity, in part because there have been no independent investigations conducted.19 In fact, Saudi Arabia has fought tooth and nail against any independent investigation into alleged crimes, even threatening to withdraw hundreds of millions of dollars from UN programs unless it was removed from a “black list” of countries accused of killing children.20 A recent Dutch proposal to establish an independent UN commission to investigate all parties to the conflict was fiercely opposed by Saudi Arabia and not backed by either the United States or the United Kingdom. After the proposal was withdrawn, a much weaker resolution was adopted that provides for the UN to assist existing Saudi investigations into its own alleged war crimes.21 The political energy wasted on establishing such a commission would have been unnecessary under RwP, since actively monitoring the use of force would have been obligatory when force was authorized.

Yemen represents a valuable test case into the systematic problems that plague RtoP and military intervention more generally. While RwP represents one of the strongest proposals for remedying these flaws, RwP itself is not without criticism. Both assessment and accountability contain their own ambiguities in need of resolution, including standardization of assessment practices and more development into how accountability could be carried out. Additionally, Brazil has ceased to advocate for RwP, no doubt due to domestic political turmoil, and there is little likelihood of the P5 binding its own hands with RwP’s additional requirements. Yet these challenges should not be seen as counterarguments against RwP, but rather a call to arms for those who see its potential.

“Statement by Saudi Ambassador Al-Jubeir on Military Operations in Yemen,” Operation Decisive Storm, March 25, 2015, www.operationrenewalofhope.com/statement-by-saudi-ambassador-al-jubeir-on-military-operations-in-yemen/. Saudi Ambassador al-Jubeir’s exact language is “to protect the people of Yemen and its legitimate government from a takeover by the Houthis.” In this statement, he also cites President Hadi’s request for assistance under Article 51 of the UN Charter. The mention to the people and the legitimate government, and not explicitly to protection from mass atrocities, may suggest that RtoP is not actually being invoked by the Saudi-led coalition. However, Tom Ruys and Luca Ferro have challenged the legality of the self-defense and “intervention by invitation” justifications offered by Saudi Arabia. Of the two only the intervention by invitation justification is plausible, though this is not without serious challenges. See Tom Ruys and Luca Ferro, “Weathering the Storm: Legality and Legal Implications of the Saudi-Led Military Intervention in Yemen,” International & Comparative Law Quarterly 65, no. 1 (January 2016), pp. 61–98. If these justifications do not succeed, then RtoP is the only remaining legal justification available for the Saudi intervention. Indeed, there have been alleged war crimes and crimes against humanity perpetrated by the Houthi and pro-Saleh forces. Ironically, similar allegations have been made against the Saudi-led coalition, too. ↩

Jeremy Moses argues that RtoP is being invoked cynically by the coalition in Yemen, but he does not make the further claim that it is an institutional failure of RtoP that allows the coalition to do so. See Jeremy Moses, “Who Is Responsible for Protecting Civilians in Yemen?,” Pacific Outlier, September 8, 2015, https://pacificoutlier.org/2015/09/09/jeremy-moses-who-is-responsible-for-protecting-civilians-in-yemen/. ↩

United Nations, Letter Dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations Addressed to the Secretary-General, 11 November 2011, A/66/551-S/2011/701. ↩

Here, I will not address the question of whether the international community sufficiently fulfilled its obligations under pillar two, so that the use of force was the “last resort.” Instead, I will concern myself with the requirements of assessment and accountability. ↩

One may point to this as evidence that the coalition’s intervention should not be described as RtoP, but instead as an intervention based on self-defense for Saudi Arabia as well as a legitimate act of intervention called for by President Hadi. However, as note 1 makes clear, this option would likely not be permissible under international law. ↩

UN Human Rights Council, “Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General: Situation of Human Rights in Yemen,” § sec. A/HRC/33/38 (2016), sec. A/HRC/33/38. ↩